Chapter 5 - Breaching international law and its consequences Flashcards
Separation of powers and the uncoordinated work of state representatives can be one of the reasons for a breach of international law. What case illustrates this and why?
The jurisdictional immunities of the state case between Italy vs Germany.
We saw the Italian government and parliament engaging in taking all necessary measures to bring the domestic legal system into conformity with the international custom on sovereign immunity and the ruling of the ICJ, whilst the domestic judiciary has repeatedly taken the opposite direction.
In case a state claims that another state has breached obligations that it had with them what are the steps that must be followed?
1- Prove the actual conduct of the complaint as a matter of fact.
2- Prove the existence of an international law rule producing one or more obligations alleged to have been infringed upon by the conduct in question, as a matter of law.
What is the principle of estoppel?
The principle of estoppel in international law, also known as the doctrine of estoppel,or aquiescense refers to a legal concept that prevents a party from asserting a claim or position that contradicts their previous actions, statements, or representations, if such assertion would result in injustice or unfairness. Estoppel serves to protect the principle of good faith and prevent parties from taking advantage of their own prior inconsistent behavior.
In international law, estoppel is often invoked in cases where a state or an international organization has made a specific representation, promise, or assurance to another state or entity and that representation has been relied upon by the recipient to their detriment. If the relying party has changed its position or incurred some form of harm based on the representation, the principle of estoppel may prevent the party who made the representation from later denying or acting contrary to it.
An internationally wrongful act consists of?
A conduct in violation of an international obligation binding to a state, which is attributable to that state as a subject of international law.
It is also necesary that the conduct was done by the state in question. A state may breach international law through any of its organs.
Aditionally a wrongful act can arise from negligence if there exists an obligation to carry out a certain conduct.
What is not part of the determination of the occurence of an internationally wrongful act?
The occurence of a damage, distinct from the breach of international law is not in itself a requirement for there to be an internationally wrongful act.
The fault or the mental state of the representative carrying out the actions is not relevant unless it’s specified in the norm that was breached.
In the past some states have invoked the independence of the judiciary as a justification to avoid international responsibility, however …
A state may not invoke international law to justify conduct in breach of international law.
Conduct by state organs acting while on duty is always attributed to the state even when they act beyond or even against the scope of their mandate or instructions.
What is an exception to the general rules of representation of states by officials?
According to article 11 ASR a conduct which is not generally attributable to a state should be considered as an act of state under international law to the extent that the state acknowledges and adopts the conduct in question.
What are circumstances precluding international wrongfulness?
- Consent, for example consent from state A to another’s state conduct in breach of a given obligation of the corresponding right, which would otherwise amount to an international wrong.
This consent must be given prior to the act in question. - Countermeasure, when the otherwise wrongful is adopted by way of a countermeasure adopted unilaterally, or jointly by states in response to an international wrong previously suffered. an example can be economic sanctions.
- Necessity, when a wrongful act is taken in order to protect the interests of the state, but this claim has never been accepted in international law.
Why can we say that the security council is paralized for the forseable future?
there are tensions between several members of the council and you need all of them to not veto to have a resolution.
Why is the circumstance of necessity precluding an internationally wrongful act controversial?
this is becaused it has almost never been upheld by an international court of tribunal.
it has never been rejected as a matter of law but as a matter of fact.
What is the legal relationship of responsibility?
- international legal relatiomship between the wrongdoing state and the victim state
- main object = reparation (to re-establish the situation existing prior to the wrongful act aka status quo ante)
+ countermeasures
Forms of reparations
- restitution
- cessation
- compensation
